The opinion of the court was delivered by: KENNEDY
On October 20, 1944, at 2:00 A.M. the motor launch Bobby left the slip between piers 3 and 4 at Constable Hook. Bobby's length is 40 feet, her beam 12 feet 6 inches. She is a water taxi, and on the morning in question she had on board several sailors as passengers. Bobby was bound for the Burns Brothers pier at New Brighton, which would make her course southwest by south. She was under half speed and was making about 4 to 5 knots through the water. Her running lights were burning brightly.
As Bobby cleared the slip her pilot turned the wheel over to libelant Walters, an unlicensed man. When Bobby reached a point in the Kills about 300 yards off the Staten Island shore, Walters saw the bow of a ship (the Act) loom up close aboard on the starboard hand. (He says he first saw her 6 to 8 feet away).
Walters then put his rudder hard left and his clutch in neutral, but the bow of Ace struck Bobby on the starboard side aft with the result that she sank. All hands on board were rescued by the crew of the Ace and of Army tug S.T. 9 which happened to be in the vicinity. At the time of the collision the weather was clear and the visibility reasonably good
Even on this brief statement of fact it is obvious that Bobby was guilty of gross fault. She was the burdened vessel, but beyond that, it is apparent that she never saw Ace until collision was inevitable. This she attributes to the fact that Ace was showing no running lights, which requires some discussion.
Ace is a work boat 58 feet 6 inches long, 17 feet 6 inches in beam. She is diesel powered; her pilot house is aft and her engine room immediately beneath it. Forward of the pilot house is a boom and mast on the top of which Ace normally carried a staff light. On the morning in question Ace was bound for pier 1, Manhattan. She had on board a number of longshoremen who had been loading cargo into a ship at Sewaren, Staten Island. Just before the collision Ace's engineer was in the pilot house. Her 'operator' had gone below to find his coat, which had been taken by one of the longshoremen. It is, nevertheless, true that the engineer was also a licensed man. At the time there was on board a Coast Guard seaman, stationed on the vessel to see that she carried out security regulations.
Ace claims she sighted Bobby for the first time 75 to 100 yards on her port bow at a time when she was making between 7 and 8 knots. She says she blew Bobby one blast and, getting no response, she throttled down and then reversed, a maneuver which, having in mind the distance at which she first saw the launch and the speed which she was making, was obviously ineffectual.
There was a sharp conflict in the evidence as to whether Ace was or was not showing running lights just prior to the collision. I believe that she was, and that the claim Bobby to the contrary is based upon a curious accident that took place simultaneously with the collision. Ace's 'bow light' is on one circuit, her staff and side lights on another. The side lights operate from a switch in the pilot house, but the staff light is merely plugged into the circuit by a fixture located underneath the coaming of the deck house. This fixture is a plug shaped like a cork. It does not seat fully into the socket, and to close the circuit it is necessary to give the plug a half turn.
Ace admits that soon after the collision it was noticed that her staff light was not burning. This she explains on the basis that in the course of rescuing the crew of Bobby some wet life preservers had been thrown on the deck house, dislodging the plug, and causing a short circuit as a result of water seeping into the socket. Ace's operator went below immediately after the collision, examined the fuses in the engine room, found that one was blown, and replaced it. All this, as I have said, is rather curious, but the testimony of neutral witnesses in the case is that the running lights of Ace were burning brightly before the collision, and this testimony I accept.
However, while I must acquit Ace of fault in respect of running lights, I cannot hold her blameless in the matter of lookout. The 'operator' had, as I have said, just prior to the collision, gone below. The engineer was acting as pilot. And so Ace was without any lookout at all.
All of this points to the conclusion that both Bobby and Ace were at fault and that the damages should be divided. I have filed findings of fact ...