The opinion of the court was delivered by: GALSTON
The libel alleges that on August 27, 1942 the motor tug Mary O'Riordan was proceeding east bound on the New York State Barge Canal, towing the loaded barges Mary E. Petrie, Arminda, Pearl Harbor and Helen Foster, in that order in tandem formation. At about 1:45 P.M. the tow arrived at the Tonawanda south terminal. There were two loaded barges tied up along the south wall at the time of the arrival of the O'Riordan tow. Somewhat to the east there was also tied up a light barge along the south wall, and further east was a sunken barge, also along the south wall.
It is alleged that at the time the O'Riordan and her tow were approaching the south wall the motor tug Calatco No. 3, with an oil barge ahead of her, was made fast outside the foregoing barges that were tied up along the south wall. At first the O'Riordan tow tied up to the Calatco tow, but shortly thereafter those in charge of the Calatco let go their lines and she, with the oil barge, proceeded away from the south wall at about 2 P.M. After the Calatco had left the south wall, the Mary O'Riordan shoved her four barges over and made them fast outside the three barges then tied along the south wall, the stern of the Helen Foster, which was the tail barge in the Mary O'Riordan tow, being farther to the east than the stern of the barge along the south wall to which she, the Helen Foster, was made fast. It is alleged that the Helen Foster was securely made fast to the Pearl Harbor, and also by a line running from her starboard stern quarter cleat to the port stern quarter cleat of the inside barge. Then the other three barges in the O'Riordan fleet were made fast.
It is alleged that about 2:50 P.M. the motor tug Calatco No. 3 was pushing the loaded tank barge Iroquois eastward, and so negligently and carelessly maneuvered the barge Iroquois that the starboard bow corner of the Iroquois collided with the port stern corner of the Helen Foster, shoving her against the stern of the Pearl Harbor, the Pearl Harbor striking the stern of the Arminda, and the Arminda the stern of the Mary Petrie, with resultant damage to all four barges.
The claimant's answer alleges that the O'Riordan tow constituted an obstruction to navigation; denies that the Calatco was negligently maneuvered and alleges that as the Iroquois was about to pass the Helen Foster the later barge swung out into the navigable channel and into the path of the Iroquois.
Of the conflicting versions of the happening of the accident I accept the story told by the libellant's witnesses. As the libellant alleges, the stern of the Helen Foster was east of the stern of the Dickey L, the inside boat, and was made fast with two lines, one to the stern of the Pearl Harbor and one to the stern of the Dickey L. In the circumstances it is difficult to understand why the stern of the Helen Foster swung out, as claimant's witnesses testified. There was very little current at that part of the canal, and no good reason was given for such possible swing toward the channel and away from the south wall unless perhaps that there was no stern line from the Helen Foster to the Dickey L. One or the other groups of witnesses must be believed and I accept the story of the libellant's witnesses as being the more probable and the more credible.
The only independent witness was Thurston, captain of the barge Philadelphia. He saw the Calatco going east close to her starboard side. He did not observe the Helen Foster swing over to her port and on the contrary testified that she was tied fast. The bow of his boat was about 12 feet behind the sunken boat. The Hedger's second boat was made fast to the stern corner of his barge. He saw the Calatco approaching through the lift bridge to the west and noted that it kept over to the starboard wall. At the time of the contact the Helen Foster was in line and moved out of line only as a result of the contact, and that to the extent of 6 or 7 feet. He said the Foster lines had not parted but that he observed that the reeves on the cleats tightened up and straightened.
Nor did the position of the tug O'Riordan obstruct the navigation of a tow proceeding under the Delaware Bridge. The O'Riordan was 325 feet east of that bridge. The accident happened because the Iroquois was navigated in such a manner as to bring her too close to the Helen Foster. She had at least 20 or 30 feet of open water between her port side and the abutment in the canal. The O'Riordan tow was visible to those in charge of the Calatco tow and with careful navigation she could safely have passed the Helen Foster.
Accordingly the libellant may have a decree. Concurrently with this opinion appropriate findings of fact and conclusions of law will be filed.
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