The opinion of the court was delivered by: INCH
Each of the libellants in these two suits, tried together, owned barges which were damaged while being towed by the tug Amboy, owned by the Pennsylvania Railroad Company, while the tug St. Charles, owned by the Amboy Two Boats, Inc., was the helper tug to the said tow. The basis for each of said suits is that these barges of libellants' were damaged by reason of a collision between these barges, while being towed, and a steel oil barge Socony 26 moored at the south of Tremley Point, New Jersey, on March 24, 1944, said collision being due to negligence by those in charge of the said tugs, Amboy and St. Charles.
It was conceded at the trial that libellants are entitled to a decree against either or both of the tugs. The controversy, therefore, is between the tugs.
The Amboy claims that the collision was due solely to the negligence of the helper tug St. Charles in carelessly pushing the tail of the tow towards the place of collision. The St. Charles claims the collision was due solely to the negligence of the captain of the Amboy who carelessly was proceeding so close to the place of collision, that when he tried to 'whip' his tow away from the said moored oil barge Socony 26, he was unsuccessful.
On the morning of March 24, 1944, the tug Amboy bound for South Amboy, New Jersey, had nine light coal barges in tow on two hawsers, three in the first tier, three in the second tier, two in the third tier on the port side, and one in the fourth tier on the port side.
As the tug and tow passed West New Brighton, Staten Island, the tug St. Charles joined the tow as a helper tug, and as it passed under the B. & O. Railroad bridge in Arthur Kill the St. Charles was astern of one of the barges, in order to guide the tail of the tow safely past the bridge abutments. When the tow passed Grasselli, the St. Charles was alongside the port barge in the second tier. It was then observed by the crew of the Amboy that the tow was swinging to starboard, towards the Jersey shore, and that the St. Charles was working her engines.
Therupon the captain of the Amboy signaled the St. Charles to come alongside the Amboy. The St. Charles complied and received orders from the captain of the Amboy to return to the port barge in the second tier, but not to work her engines as that was tending to push the tow to starboard. The St. Charles, as the tow was rounding Tremley Point, returned to the tow alongside the port barge in the second tier and proceeded to make fast to the barge, working her engines and pushing against the barge causing the tail of the tow to again swing to starboard with the result that the barges in question came into collision with the steel oil barge Socony 26, which was moored to the bulkhead at the south end of the American Cyanamid Company plant on the Jersey shore. The dock is about 600 feet long and lies a little south of Tremley Point. The Socony 26 was moored at the south end of the dock.
In order to determine from the testimony whether or not those in charge of these tugs were careless, it is necessary to consider the testimony as to what each of these tug captains did, if anything, which indicates such carelessness. Before doing this, however, a few general statements should be made.
The Amboy had two cables from her stern bitts to the outside corners of the loaded coal barges in the first tier and there was about 125 feet between the Amboy's stern and the forward end of these boats. Each of these coal boats were approximately the same length and dimensions (about 100 feet long) so that it can readily be seen that the distance, from the tug Amboy to the tail of her tow, was approximately 600 feet. The starboard boat in the second tier, the Cape Reed, was 142 feet long somewhat longer than the other boats. Her deck was several feet higher and she lapped the two boats in the third tier. I see nothing, however, imporper in the make up of the tow.
The wind blowing across the Jersey shore against the tow was approximately 20 miles an hour as the tow reached abreast of the town known as Grasselli, New Jersey. From Bedloes Island to West New Brighton, the Amboy had proceeded alone with her tow and it was about 9:20 A.M. when the tug St. Charles joined the tow. The accident did not occur until about 11 A.M. when the tow was of Tremley Point. The day was clear, the tide ebb and under foot.
There was nothing unusual about the speed of this tow. In my opinion, this speed was approximately four miles an hour. In addition, from Grasselli to Tremley Point, there was a bend in the stream to the port of a vessel going south past Grasselli towards Tremley Point, making it necessary for such a tug as the Amboy to watch out for any starboard swing as they approached Tremley Point. The wind, then blowing, was helpful in that connection as it had a tendency to keep the tow away from the Jersey shore. Nevertheless, it was incumbent on the captain of the Amboy to particularly bear in mind the danger of the tow in this somewhat narrow stream as to any swing to starboard as Tremley Point was approached and passed.
Bearing in mind these general observations which seems to me to be borne out by the consideration of the exhibits we now come to the actions of the captains of the tugs.
I am satisfied that the captain of the St. Charles lacked experience both as to signals and the duty of a helping tug. The captain of the Amboy was a much more experienced man, although that greater experience placed a duty, as to care, upon his shoulders. I am willing to take his assertion that a helping tug should never push against the wind.
Nevertheless, as the tow proceeded towards Tremley Point and was passing Grasselli, it was observed that the captain of the St. Charles, whose tug was alongside the port barge in the second tier, was working her engines and pushing the tow against the wind to swing somewhat towards the Jersey side, whereupon the captain of the Amboy signaled to the St. Charles to come alongside the Amboy for orders. This order was complied with by the captain of the St. Charles, although apparently he did not at first understand what the signals were about. Thereupon the captain of the Amboy told him to return to his place alongside the tow, but not to work his engines. Nevertheless, when the St. Charles did return to the tow, I am satisfied he deliberately disobeyed this order, the tow was about around Tremley Point at that time, very near the Cyanamid dock where the collision occurred.
Aside from what might possibly be called interested witnesses, am impressed with the testimony of Gaffney, who was on one of the barges near the St. Charles and who seems to me to be disinterested, who testified that he was an eye witness of what was then being done by the captain of the St. Charles and he protested against it in very vigorous manner. This was shortly before the collision. This witness testified that he saw the St. Charles at that time 'with her bow to the ...