The opinion of the court was delivered by: BYERS
These causes were consolidated for trial by stipulation in the record, and involve but one question, namely, the cause of the collision between the westbound S. S. Middlesex, overtaking the tug Baldrock and her tow, in the East River near the easterly side of the Hell Gate Railroad Bridge on March 12, 1942, at about 6:25 p.m. E.W.T.
In the first cause the Eastern Transportation Company (herein called Eastern) as owner of the seagoing barge Tompkinsville, one of the colliding vessels, libeled the Middlessex and joined Coastwise Transportation Corporation (herein called Coastwise), her owner. The latter has claimed the Middlesex.
In the second, Martin Marine Transportation Company, as owner of the barge Wollaston also in the tow, and alongside the Tompkinsville to starboard, sues the Middlesex and her owner, and also the tug Baldrock, for damage to the Wollaston occasioned by the collision between the Tompkinsville and the Middlesex. The Baldrock was claimed by her owner, Eastern, and the Middlesex was claimed by Coastwise.
In the third, Coastwise, as owner of the Middlesex, libeled the tug Baldrock and the barge Tompkinsville, both of which were claimed by Eastern as owner.
It is undisputed that at the time and place stated the Tompkinsville, being the port barge in the westbound tow, consisting of the tug Baldrock and three barges made up abreast at the end of two 30-fathom hawsers to the outside corners of the three barges, sheered to her own port and struck the Middlesex, also westbound, on her starboard side about 140 feet aft of her stem, whereby damage was sustained by those two vessels, and by the Wollaston.
The only question is whether the sheer was caused by suction created by the Middlesex as she overtook and passed the tow, or by some unidentified and unexplained cause, which means that the sheer would have occurred even if the Middlesex had not been in those waters at all.
The evidence is in dispute as to only one important question, whether the sheer started when the Middlessex was astern of the Tompkinsville, or when the two vessels were nearly abreast.
It seems clear that the latter must be the true version, for otherwise the Middlesex would have at least blown an alarm upon observing so perilous a development, and perhaps reduced her speed, or stopped her engines. Her own witnesses say that she did neither, as of course do the witnesses for the tug and the damaged barge.
It is true that the Middlesex had to navigate with reference to an eastbound tow which was gradually veering toward the Astoria shore, at a distance of 300 feet away from the collier on her port hand, but the excuse of her master, that he did not blow an alarm for fear of its effect on that tow, exposes the weakness of his own case. As the overtaking vessel, the Middlesex owed her first duty to the tug which had assented to his passing signal, and to her tow, and I am satisfied that the master knew that. Since he blew no alarm, it is a fair inference that he knew of no occasion for doing so, i.e., he did not observe the sheer until he was nearly abreast of the Tompkinsville sufficiently to create a suction which drew that vessel toward his own; then he trusted his own full speed of about 8 knots or better to avoid the collision, but without success.
The issue of fact is thus resolved against the Middlesex, and she will be held solely at fault.
1. Ownership and operation of the various vessels involved in these causes are found to be as pleaded and above recited.
2. On March 12, 1942, the tug Baldrock had in tow, westbound, the seagoing barges Tompkinsville, Wollaston and Hock, made up abreast on two 30-fathom hawsers leading from the tug to the port bow corner of the Tompkinsville, the port barge in the tow, and to the starboard bow corner of the Hock, the starboard barge. There were proper cross and ...