The opinion of the court was delivered by: ABRUZZO
The steamtug "Mattie" came into collision with the sand scow "Alva" on December 8, 1939, in the waters of Hell Gate. The "Mattie" was proceeding without any tow and the "Alva" was in the tow of the tug "Bronx No. 4". The petitioners seek a limitation of or exoneration from liability, claiming (1) that the petitioners are entitled to exoneration; and (2) that if they are not entitled to exoneration, they should be granted limitation of liability.
With respect to exoneration from liability, the proof offered indicates that the steamtug "Mattie" was proceeding northeast, along the Astoria shore, going up the Harlem River (p. 11, Rec.). The "Alva" was coming west with the tide (p. 12, Rec.). The "Mattie" intended to steer across the stern of the "Alva" to go to the New York shore to pick up a tow at 96th Street. It is claimed that the captain of the "Mattie" planned his course to cross a couple of hundred feet under the stern of the sand scow "Alva". Having difficulty in turning because of the strong ebb tide, although two men were at the wheel of the "Mattie", the steamtug kept turning to the left and into the sandscow "Alva".
It is uncontradicted that the sand scow "Alva" and the tug "Bronx No. 4" did not vary their course. There is no dispute that this tow was clearly visible to the captain of the "Mattie" and that the sand scow "Alva" and the tug "Bronx No. 4" did absolutely nothing to bring about or help to cause the collision.
A careful analysis of the evidence adduced indicates to the court that the petitioners are not entitled to exoneration from liability.
The "Mattie" claims there was a strong ebb tide prevailing at the time of the collision. Proof was offered that the steering apparatus of the steamtug "Mattie" was in good working order and the engines were operating properly and had sufficient power.
The certificate of enrollment and license issued by the Department of Commerce, Bureau of Navigation, for the "Mattie", was introduced into evidence and marked Petitioners' Exhibit 4. It establishes that she is duly enrolled as a towing tug.
The certificate of inspection issued by the United States Department of Commerce, for this tug, Petitioners' Exhibit 2, authorizes her for towing operations in the waters of the Harbor of New York.
Three weeks before the collision, the steering gear of the "Mattie" was checked by Francis J. Reichert, the shore engineer for the charterer of this tug. This test showed the steering gear was in very good condition (p. 75, Rec.).
The captain was undoubtedly an experienced navigator, who knew the "Mattie" and had been operating her for four or five years through the very waters where the collision occurred.
The contention of the petitioners is that the unusual tide was the sole cause of this collision. The captain, having had many years experience, knew the conditions he was bound to meet in Hell Gate. He testified that he was unable to steer the steamtug as he tried to cross astern of the tow and had to call his deckhand to help him straighten the wheel. In spite of his experience, knowing the conditions he was bound to meet as a skillful navigator, and having handled the steamtug "Mattie" for four or five years, he claims that he was in no way negligent in causing the collision.
The court cannot accept this theory. The captain was admittedly unable to control the "Mattie" enough to keep her from going off her course. He undoubtedly did not allow sufficient room to pass under the stern of the tow. The "Alva" and the tug "Bronx No. 4" were bound west on a steady course, a safe distance off the "Mattie". The collision was caused by the negligence of the captain of the "Mattie" in the manner in which he operated and steered his steamtug. The tide and velocity of the wind were within the peculiar knowledge of the captain and it was his improper handling of the wheel and his failure to give the "Mattie" sufficient distance to cross astern of the "Alva" and her tow which constituted the negligent acts which caused this collision. A contributing cause may have been that the hand gear was old and outmoded and probably did not respond as quickly as it should have.
The petitioners also contend that at best it was a mistake in judgment on the part of the captain, for which the petitioners could not be liable. They assert that when the owners and operators of a vessel appoint a master having reasonable skill and judgment and there is a mistake of judgment where the mistake is only manifest by the result, and where the master exercised reasonable skill, the owners and operators are not responsible.The Perseverance, 2 Cir., 49 F.2d 785; The Garden City, 6 Cir., 127 F.298; and The Walter A. Luckenbach, 9 Cir., 14 F.2d 100.
In view of the fact that the court has found that the captain did not use reasonable skill, the petitioners are not entitled to come within the purview of these decisions. It was not simply an honest error of judgment on the part of an experienced tug captain, but his negligence in the operation of ...