The opinion of the court was delivered by: BYERS
These causes were tried together since they involve but a single collision between the motor vessel Segundo and the dump scow D No. 22 on December 7, 1938, at about 3 p.m., in the North River about 400-500 yards off the northerly end of the Battery.
The libel is that of the owner of the scow, against the Segundo, which impleaded the steamtug Ariosa which was towing the D No. 22. That is the first cause. In the second, a cross-libel was filed by the owner of the Segundo against the steamtug Ariosa and her owner, to recover part of the Segundo's damages.
The object of the controversy, from the standpoint of the Segundo is to reduce her liability to half damages in the first cause, and to recover a like proportion in the second, since her own fault is pleaded and was conceded at the trial. The scow D No. 22 and the Ariosa are of common ownership, but were separately represented at the trial, because of underwriting exigencies.
The Segundo is a twin-screw motor vessel, 367 feet long by 53 1/2 in beam and, as she was partly laden, her mean draft was 19 feet. At 2:40 p.m. on this day, she backed out of the north side of pier 7, Jersey City, with two assisting tugs, on her starboard side near the bow and stern respectively. She was bound for Philadelphia, and in order to get on her course to sea (because of shoal water downriver) she had to head up the stream, and proceed on that heading sufficiently to accomplish a full turn to starboard.
This was attempted but, before completion and while the Segundo was heading across the river, she managed to pass between the Ariosa and the head scow in her tow, D No. 22, breaking the towing hawser, and thus causing the scow to strike her port side at about No. 2 hatch, which is some 45 feet aft of her bow.
The approximate place of the collision -- on the New York side of the center of the river -- is not in dispute; nor is the time, which was about 3 p.m.; nor are the physical conditions. The day was clear, with an ebb tide running, of 2 1/2 miles, and southerly wind of negative effect, and visibility was good.
The Segundo's faults were numerous and glaring, but for her the argument is pressed that she was not alone to blame, but that the Ariosa must also be held, and the fault attributed to her is her conceded failure to blow a whistle signal to indicate a starboard passing; it is urged that, had she done this, the Segundo would have become aware of her presence sooner than she did, in which event it is to be supposed that she would have done something to avoid the collision. What she would have done, and when, and the degree of success which would have rewarded her efforts, are manifestly matters of conjecture or hindsight.
Her proctors urge that the said avowal of fault at once diverts attention from the Segundo to the Ariosa, and that the showing for her invites condemnation in the respect stated.
Pursuit of that inquiry requires that we recur to the navigation of the Segundo, because upon what she did depends the asserted duty of the Ariosa to use whistle signals, prior to the alarms which she blew.
The descending tow consisted of the Ariosa, 118 feet long, of 750 horse power, and, at the end of a 200-foot hawser on a bridle from the tug, three 115 feet by 42 feet wooden scows, close coupled, drawing about 12 1/2 feet, leaving 2 1/2 feet of freeboard -- thus accounting for about 670 feet of tow over-all. That flotilla had made up at Edgewater, N.J., at about 1:45 p.m., whence departure was had, bound to sea where the scows were to be dumped.
Proceeding down the river with the tide under foot, speed over the ground was about 6 miles per hour; a center river course was followed without incident, and when about at pier 13 North River near Cortlandt Street, the navigator of the tug observed the Segundo on the New Jersey side, headed up the river -- as he testified.
That is in accord with the Segundo's narrative as to her initial heading, once the undocking tugs had let go. Her Sandy Hook pilot says that he took over when she was about 800 feet off from pier 7, Jersey City, and she was headed about northeast "in line with the pier ends".
Such a heading would point the vessel in the general direction of pier 13, North River.
The two vessels were then apart some 3,000 feet, a little better than one-half a nautical mile, and were not screened by intervening vessels.
The ship never blew any passing or course signal to the tug, but urges that the latter was required to blow something, probably two blasts for a starboard passing, since the tug ...