The opinion of the court was delivered by: KENNEDY
This is a libel in rem brought by the owners of the scow Staff Light against the steamship Minerva and the steam tug Kangaroo, as the result of a collision which took place at 12:50 P.M. on January 12, 1944.
South of Robbins Reef Lighthouse is Gas Buoy No. 27. It is at or near this buoy that ships bound south in the main ship channel make their turn to starboard to enter the Kill Van Kull. Just prior to the collision in this cause Minerva,
a twin screw steamship, was steaming down the channel with the intention of entering the Kill Van Kull. It was then roughly two hours after high water; the tide was ebbing, its velocity being about two knots. The wind was from northwest with a force of about thirty knots. Minerva was flying light, her freeboard ranging from 30 feet aft to 60 feet forward. As she approached Buoy No. 27 Minerva kept to her own starboard side of the fairway. She passed a Socony tug and tow, leaving the latter on her own port hand, whereupon the tug and tow fell in astern of Minerva, and ultimately sheered over so that they were on Minerva's starboard quarter. The rug and tow were also bound for Kill Van Kull.
In the meantime Kangaroo,
a steam tug, had towed Staff Light
out of Kill Van Kull on two hawsers 50 to 60 feet long. Staff Light was being towed stern first. Her freeboard was about 8 feet. As Kangaroo with her tow drew out of Kill Van Kull she headed for her own port side of the fairway. She was bound for the Bay Ridge shore, and so her course was practically due east.
Just prior to the collision Kangaroo was making about five knots over the ground, and Minerva in excess of seven knots over the ground, both vessels of course having the tide under foot. Kangaroo's master first noticed Minerva when the latter was 1500 feet off his port bow. When the distance had closed to 1200 feet he heard one blast from Minerva followed by an alarm.
Kangaroo answered with an alarm and one blast, the meaning of which, according to Kangaroo's master, is a doubtful assent to a port to port passing. Having given this signal Kangaroo put on speed and turned to starboard. Minerva in the meantime backed her starboard engine, her port engine continuing ahead, and turned to starboard. Kangaroo, realizing that collision was practically inevitable, then put the rudder hard left in an attempt to swing Staff Light out of Minerva's path. But the maneuver failed and Minerva's stem struck Staff Light on the starboard, but was later picked up by Minerva, which lowered a Jacob's ladder for the purpose
All sorts of claims of fault are urged by Minerva against Kangaroo, and by Kangaroo against Minerva. But the true cause of the collision is obvious: Both Minerva and Kangaroo were attempting to shave the same buoy (No. 27) at the same time, in order to avoid being set off their respective courses by the ebb tide and northwest wind. The natural inquiry then is whether either ship had a privilege over the other which entitled her to the exclusive use of the water adjacent to the buoy. Obviously Minerva must have had Kangaroo on her starboard hand, at least until she made her turn, but I do not believe the starboard hand rule applied. I think it was a case of special circumstances, because Kangaroo was leaving Kill Van Kull and Minerva was entering it. And Kangaroo does not charge Minerva in the pleadings with violation of the starboard hand rule, assuming that it applied. I do not see how Kangaroo would be in a position to do this anyway, because concededly she did not hold her course. Kangaroo does claim that Minerva should have kept to her own port side of the center of the channel, because of an alleged custom under which ships bound down the bay with the intention of entering Kill Van Kull keep over to the port side of the channel and make a sweeping turn, giving Buoy No. 27 a wide berth. I doubt that there is any such custom.
Minerva makes the obvious charge against Kangaroo that the latter was too far over to her own port side of the channel which she was using.
I do not think it is necessary for the decision of this case that any narrow fault formula be called into play. The plain fact is that both ships were guilty of bad navigation. Both were, as I have said, trying to shave the same buoy at the same time, and at the time of exchange of whistle signals both were for this reason in the jaws of collision. I do not criticize Kangaroo's subsequent maneuvers, nor do I criticize Minerva for making what her master calls a 'slack turn' around the buoy. Nor do I believe that careless lookout was a cause of the disaster. The fault goes deeper than these things. Neither vessel had a privilege over the other; neither had any exclusive right to the water at the point of collision, which was certainly not more than 300 feet to the southard of the buoy. If I am right about this, both vessels were at fault and the damages should be divided.
I was asked by the advocates to fix the damages of Staff Light's scowman. I think he should get $ 400, this amount to include his property loss.
Submit an appropriate decree. I have filed findings of fact and ...