The opinion of the court was delivered by: BYERS
There was a collision on January 10, 1944, in the Arthur Kill, about a half mile south of Tremley Point on the New Jersey side. The libelant's wooden barge Blue Jacket, being loaded and the hawser vessel in a two-barge tow to the libelant's tug Republic No. 5 that was proceeding up the Kill, favoring the Staten Island side, and when about abreast of the mouth of the Rahway River, was struck by the steel barge Cape Clarence, which was light and being towed, stern foremost, by the Diesel tug Prospect II, which had the barge on the tug's port hand; the stern of the tug was about 10 feet aft of the rear end of the barge.
There is no criticism of the make-up of either tow, nor are the material facts in dispute.
The collision occurred at about 2:45 p.m., and there was an ebb tide flowing down the Kill, and the wind was blowing out of the northwest, of an average hourly force of about 22 miles.
There were two barges, both loaded, in the upbound tow, which means that the freeboard of those vessels was low. It will be seen that this tow was affected only by the tide, while the Cape Clarence, being light, had the tide underfoot, and was receiving the force of the wind on her high side nearest the Staten Island shore. Also that the captain of the Prospect II had to navigate without being able to observe anything except what he could see dead ahead and to his starboard side, since his entire view to port was shut off; this means that he had to rely on navigating signals from the deckhand on the Cape Clarence.
The vessels came into mutual sight as the downbound tow rounded Tremley Point, and Loud, the mate on the Republic No. 5, who was in charge of navigation, at once blew a one-blast signal to indicate a port passing, and he did not hear an acceptance, although all witnesses called for the Prospect II assert that the signal was accepted by a one-blast whistle signal.
The channel is about 375 feet wide, and there was ample room for these tows to pass safely, and the Cape Clarence passed the Republic No. 5 with a clearance of about 20 feet, but her course was then toward the New Jersey shore, for the Prospect II was under a starboard helm at that time, which caused the after end of the Cape Clarence to approach so close to the Blue Jacket as to strike the latter near her port bow; that is to say, between the bow cleat and the quarter cleat on the port side forward, causing the damage in suit.
(1) Ownership and operation of all vessels involved were conceded and are found to be in accordance with the pleadings.
(2) The libelant's Diesel tug Republic No. 5 (87 feet by 20.1 feet by 9.9 feet inside depth, with 500 horse power) was proceeding in a northerly direction through Arthur Kill on January 10, 1944, having in tandem tow the libelant's wooden barge Blue Jacket, loaded (116.3 feet by 31.2 feet by 13.4 feet inside depth) and drawing 11 1/2 feet of water, and close coupled, libelant's wooden barge Blue Comet (112 feet by 29 feet by 14.8 feet inside depth), drawing 11 1/2 feet of water, also loaded, on a bridle hawser about 200 feet long, leaving a space between the tug and the hawser barge of about 180 feet. This tow moved at a speed of 2 1/2 miles per hour over the ground.
(3) The claimant's Diesel tug Prospect II (63.5 feet by 18.8 feet by 8 feet inside depth, with 375 horse power) was proceeding in a southerly direction through the Arthur Kill at the same time, having on her port side the steel barge Cape Clarence, which was light, stern first (133.9 feet by 34 feet by 15.5 feet inside depth). This tow, being light, and having the tide underfoot, made 4 1/2 miles per hour over the ground.
(4) As the latter tow was made up, the navigator of its tug was unable to see except directly ahead from his pilot-house and on his starboard side, since the cabin on the Cape Clarence rises 8 feet above the deck and is 22 feet wide and measures 8 feet fore and aft, and the coaming is 4.9 feet above the deck; the height of the sides of the Cape Clarence at the stern was 18.6 feet, which was increased by the 8-foot height of the cabin; the height of the sides amidships was 17 feet, and the Cape Clarence drew 20 inches when light.
(5) The top of the pilot-house of the Prospect II was not more than 15 1/2 feet above the water-line.
(6) The stem of the tug Prospect II was about 80 feet aft of the forward end of the Cape Clarence as the latter was being towed.
(7) There was an ebb tide running southerly through Arthur Kill, and a northwest wind prevailed, of an average hourly force of 22 miles; visibility was good, and the ...