The opinion of the court was delivered by: ABRUZZO
These four suits arose out of two collisions which occurred at about 5:00 p.m. on December 27, 1939, in the Kill Van Kull, in the vicinity of Neward Bay.
One action was instituted by the Sun Oil Company, owner of the motor vessel "Passaic Sun", against the tugs "Cree" and "Thomas A. Feeney". The second suit is by the James McWilliams Blue Line, Inc., as owner of the tank barge "Blue Line No. 103", against the tugs "Cree" and "Thomas A. Feeney". In the third cause of action, the libellant, Motor Tug Cree, Inc., owner of the tug "Cree", has brought suit against the tug "Thomas A. Feeney" and james McWilliams Blue Line, Inc. In the fourth case, Tanker Hygrade No. 14, Inc., owner of the tank barge "Hygrade No. 14", is suing the tug "Thomas A. Feeney" and the tug "Cree".
For clarity and brevity, the respective parties will hereinafter be designated as the "Passaic Sun", the tug "Cree", the tug "Thomas A. Feeney", the tank barge "Blue Line No. 103" and the tank barge "Hygrade No. 14".
The tug "Cree", with the light oil barge "Hygrade No. 14" on its port side, was proceeding from Bayonne, New Jersey, westward through the Kills. The tug "Thomas A. Feeney", with a loaded oil barge on each side, the "Blue Line No. 103" on her port side and the "Rockland No. 1" on her starboard side, was navigating eastward through the Kills. The tanker "Passaic Sun", loaded, bound from Newark to Peekskill, New York, entered the Kills, intending to continue through that water toward New York, and took up a position behind the tug "Thomas A. Feeney", eastbound.
While in the positions just outlined, a collision occurred between the tow of the "Thomas A. Feeney" and the tow of the "Cree". The starboard forward corner of the barge "Blue Line No. 103" on the "Feeney's" port side collided with the port side of the barge "Hygrade No. 14" about two feet forward of the latter's stern. The impact caused the lines between the "Hygrade No. 14" and the "Cree" to part, throwing that flotilla out of control. Before the "Cree" could recover her tow, another collision ensued between the port bow corner of the "Hygrade No. 14" and the port bow of the "Passaic Sun". Summarizing the incidents which transpired, the first collision is claimed to have damaged the "Blue Line No. 103" in tow of the "Feeney", the tug "Cree" and her tow, "Hygrade No. 14"; while the second accident caused damage to the motor vessel "Passaic Sun" and to the port bow of the "Hygrade No. 14". It will be noted that the barge "Rockland No. 1" sustained no damage and is not concerned in this litigation.
These collisions happened at about dusk when it was yet possible for the vessels to be discernible to one another. It is conceded that all of the vessels had proper hights and that the tugs "Cree" and "Thomas A. Feeney" had exchanged one-whistle signals.
From the resume of the circumstances involved in these two collisions, the problem of establishing responsibility appears to be somewhat complicated. It is inescapable, however, that the "Passaic Sun" is entitled to compensation for her damages from some one inasmuch as she was an innocent victim of the collisions. From whom the "Passaic Sun" shall recover depends upon where the responsibility lies for the first collision.
Indubitably, the accident between the two of the "Thomas A. Feeney" and the "Cree's" tow must have resulted in one of three ways:
1. The "Thomas A. Feeney" either was not or failed to remain on her starboard hand (viz., southerly or Staten Island) side of the channel.
2. The "Cree" either was not on or failed to remain on her own starboard hand side (viz., northerly or New Jersey side) of the channel.
3. Each of the vessels was close to the middle of the channel and each failed to move sufficiently to her own right, although observing that the other was not doing so.
It must be borne in mind that it was still light enough for each of the vessels, the "Cree" and the "Thomas A. Feeney", to observe one another while in the narrow channel. The testimony indicated that the channel is from four hundred fifty (450) to five hundred (500) feet in width. The spread of the two tows being about two hundred (200) feet, it can be reasonabloy assumed that approximately three hundred (300) feet remained in which the tows could be navigated with a margin of safety.
Thus, it becomes necessary to scrutinize the testimony adduced before the Court in order to determine whether the "Thomas A. Feeney" is solely responsible for the damages sustained; whether only the tug "Cree" is liable for causing the collisions; or whether both vessels are partially responsible. Should it prove that the "Thomas A. Feeney" was at fault, that vessel will be liable for full damages; and conversely, should the "Cree" be held responsible, she will be compelled to compensate for all the damage incurred. If the testimony indicates that both vessels were at fault for the collisions, then, the damages will be apportioned.
Before analyzing the testimony given by the several witnesses, it is obvious and it has been established by all the parties herein that the Kill Van Kull is a narrow channel. Therefore, the rule applicable to the existing circumstances is expressed in Title 33 U.S.C.A. § 210, which provides: "In narrow channels every steam vessel shall, when it is safe and practical, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel."
From the evidence, it is manifest that both the "Thomas A. Feeney" and the "Cree" agree that each of them could have kept to her own starboard side of the channel; and if each of the vessels had done so, the first collision would not have occurred for there was ample space for each of them to pass one another port to port.
At the trial of these cases, Captain Myers, master of the "Cree", testified as follows:
"Q. Did you see this 'Passaic Sun'? A. He was about between Buoy 5 and Bergen Point Ferry.
"Q. How far behind the 'Feeney's was he when you first saw him? A. About 700 feet, ...