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August 7, 1941


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

On stipulation the above-entitled petition for limitation and exoneration and suit in admiralty were tried together and as they are based on substantially the same facts one opinion will suffice.

The physical conditions prevailing between 5 and 6 o'clock on the afternoon of October 10, 1938, at the time of the happenings hereinafter described, including the physical land characteristics, the bridges, bend in the Arthur Kills, etc., and the position of the dredge Governor Herrick, are best shown on the Chart, Cities Service Exhibit 1 and Petitioner's Exhibit 3 B, and also on the deposition of petitioner's witness Charles Larkey, as Exhibit 3 A.

 There is some conflict in the evidence as to the width of the Channel at the place in question, but I find it to be about 400 to 450 feet. Some of the witnesses in speaking of the Channel, were speaking of the width of the water from the New Jersey to the Staten Island shore, which is somewhat greater. At or about the place in question there is a bend or turn in the Channel, Eastward from South to North. The tide was flood at the time in question, but there is a sharp conflict in the evidence as to its velocity, the estimates in the oral testimony varying from that of the Pilot of the Missouri of about three knots, to that of the Pilot of the Russell No. 6 of about one mile an hour, but I find that it was about one-half a knot, as shown by the Department of Commerce Certificate.

 Visibility was good and the weather clear.

 The Missouri, 450 feet over all, and 59 feet beam, left Warner's Dock on the New Jersey shore on October 10, 1938, light, bound for Port Arthur, Texas. She was drawing about 18 feet aft and about 3 or 4 feet forward.

 Her Master was in command and on the bridge with Captain Fitzgerald of the Tug Rivere, of the Olsen Towing Company, who was piloting the vessel, and a quartermaster was at the wheel. The Chief Mate, after he finished his work on the forecastle head, came on the bridge, and remained until he left to attend to dropping the anchor, and after that time the Third Mate handled the telephone or telegraph to the engine room. The Missouri proceeded northerly through the Kills at about nine and one-half knots per hour.

 The Tug Rivere assisted at the undocking of the Missouri, and was following her.

 The Steamtug Russell No. 6, 65 feet long, 20 feet beam, with an indicated horse power of 350, left Schenectady with the Steel barge Russell 23, 230 feet long, 43 feet beam, in tow on hawsers bound for Trembly Point in the Kills. Before entering the Kills the Tug Russell No. 6 picked up the Russell 23 on the tug's port side, made fast so that the bow of the Russell 23 extended about 200 feet ahead of the bow of the tug, and the stern of the tug was about 20 to 25 feet astern of the barge.

 The Missouri proceeded up the Kills, and the No. 6 proceeded down the Kills.

 There is a conflict in the testimony, but in my opinion the following is sustained by the testimony.

 The Russell No. 6 passed under the B & O Bridge over Arthur Kill through the draw on the Staten Island side, which was the general custom as to that particular bridge for vessels going down the Kill bucking a flood tide. About 160 feet astern of the No. 6 was the self-propelled tanker Charles T. Leffler, about 114 feet long, and 24 feet beam, which was proceeding from Passaic, New Jersey, to Perth Amboy, New Jersey, and passed through the same draw.

 The Russell No. 6 was making about 2 1/2 miles an hour through the water bucking the tide, which was about 2 miles per hour over the ground, and the Leffler was moving somewhat faster. While between the B & O Bridge and the Goethals Bridge the Leffler sounded a one whistle signal to the No. 6 for permission to pass to starboard, which was answered with one whistle by the No. 6, this may have been what those on the Missouri thought was a one whistle signal to her. The No. 6 and the Leffler proceeded through the Goethals Bridge, the Leffler being astern and to starboard of the No. 6.

 The Leffler caught up with the No. 6, which was to her starboard side of the middle of the Channel, at the northward end of Morse Creek, the No. 6 being about abreast of the Leffler on the port side about 150 feet off, when the one whistle signals for a port to port passing were sounded by the Missouri, the No. 6, and the Leffler. Prior to that time the Missouri had sounded a four whistle ...

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