The opinion of the court was delivered by: BYERS
These causes involve a collision between the barges Alice Sheridan and Governors Island, in Arthur Kill on April 29, 1942, at about 8:20 a.m.
The former, loaded with coal, was moving northerly, being the only vessel in tow of the Diesel tug Doris B.
The Governors Island was one of a 15-barge light fleet moving southerly in tow of The Pennsylvania Railroad Company's steamtug Amboy, assisted by the Diesel tug Wicomico.
The Governors Island was the fifth vessel on the starboard side of the light tow, which was made up three abreast. There were four barges on the port side, five in the middle of the tow, and six on the starboard side. The somewhat irregular conformation was the result of the addition of four barges to the fleet at Elizabethport, the original number leaving New York having been eleven, and the destination being South Amboy. The added barges were the Birch, Governors Island, and Eureka No. 97 in that order on the starboard side, and the Glen Island being the fifth barge added to the middle line or file.
Since these vessels were not of uniform length, the tiers were not laterally even, astern of the third; the Birch, being the fourth starboard barge, protruded ahead of the stern of the vessel to her own port, and extended aft of the bows of the port side and middle barges in the fourth tier on the port side; the Governors Island (starboard fifth) lapped the vessels to her own port in the middle line, that is, the fourth, which was the Eureka No. 100, and the fifth, the Glen Island; her stern extended aft of the bow of the latter in the middle line, while the Eureka No. 97 trailed after the Governors Island, which was made fast to the Birch just ahead, and the Eureka No. 97 astern, and the latter was held to the Glen Island by a breast line.
The fore and aft lines on the Governors Island being accounted for, it is required to ascertain how she was made fast to port.
De Naer, her captain, says: "I was tied up to his (Eureka No. 100) quarter cleat with a breast line * * *." and that statement is not contradicted.
Also the Eureka No. 97 was held by a line from the Glen Island, as her captain related. Thus by her own direct connection, and the indirect one leading through the Eureka No. 97 to the Glen Island, the Governors Island was not free to move out laterally to her own starboard hand and away from the flotilla, as argued for Tracy in the second cause.
The foregoing is derived from the testimony as a whole, and not because it was completely or clearly shown in any one place. For instance, Penn.Ex.1 is in error according to the testimony, in showing a breast line between the Governors Island and the Glen Island.
The two causes were tried together by consent, and should be explained:
By libel filed October 22, 1942, Walter Swenson, as owner of the barge Alice Sheridan, sued the Great Eastern Fuel Co., Inc., as charterer of the said barge, alleging her delivery in good condition on March 1, 1942, and her return on April 30, 1942, in a damaged condition not caused by ordinary wear and tear.
On December 1, 1942, the said respondent filed an answer, and a petition impleading The Pennsylvania Railroad Company, the owner and operator of the tug Amboy, and these pleadings were amended under date of February 10, 1943.
On March 11, 1943, the impleaded respondent filed answers to the petition and to the libel, and in the former the collision in question was set forth, and sole fault therefor was alleged to be on the part of the tug Doris B; on the same date the impleaded respondent filed a petition impleading the said tug Doris B, and prayed that the libel be dismissed as against The Pennsylvania Railroad Company, and that the impleaded tug be the subject of proceedings in the suit for damages initiated by the libel. Process issued pursuant to the prayer of that petition, ...