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February 15, 1949


The opinion of the court was delivered by: BYERS

The steamtug Geo. H. Jackson capsized and sank in the waters of Newark Bay on October 30, 1945, at about 1:45 A.M., E.W.T., while engaged in assisting, or as the result of making an effort to assist, a Metropolitan tow to make its way into the channel running northeasterly from Shooters Island to the upper reaches of the Bay.

These two causes, which were consolidated for trial, present the conflicting claims of the respective owners of the craft involved; in the first, recovery is sought for damages to the tug, for loss of the crew's effects, and for salvage services said to have been rendered to the tow: in the second, the aim is to recover for damages sustained by the second scow in the tow as the result of contact between her and the tug Jackson, as she was turning over and settling in her sunken position.

The only matters in dispute concern the maneuvers of the tow, and the manner in which the tug was handled. As to both, there is no expert opinion evidence, and the Court is left to reach its own untutored conclusions as to how the operation should have been conducted if the skill of their calling had been brought to bear by the captains of both tugs.

 The area involved is indicated on the Chart, Ex. 1, as embraced between the Central Railroad of New Jersey on the north, and the northerly line of the channel of the Kill Van Kull as it runs generally east and west, on the south. That dimension is about 4,050 feet.

 The channel with which these causes are concerned is about 590 feet wide (apparently 500 feet is the minimum width) and makes under the railroad bridge, which is supported by an abutment so placed that the dredged portion is wider on the westerly or port side of an ascending tow, than on the starboard hand; and yet the depth on that side, below, directly under, and for at least 1,000 feet above the bridge to a width of about 600 feet outside the channel to the easterly, is shown to be as much as 24 feet. In view of that circumstance, it is difficult to accept the version of the Metropolitan tug's captain, that the westerly channel is to be preferred and is customarily used by tows. If there is justification for ignoring Article 25 of the Inland Rules, 33 U.S.C.A. § 210, the evidence to that effect is lacking.

 Perhaps this statement is not of much import except as the course chosen by the Metropolitan tow in entering the channel as it did from the east, and the immediate maneuvers consequent upon that movement, tend to illuminate what happened.

 There had been dredging operations carried on in these waters from at least October 16, 1945, as navigators were notified by the Coast Guard by notice of that day, and as the captain of the Metropolitan No. 3 knew from observations made on October 26th, when he hauled a tow throughout this channel.

 The affected area of the dredging operations is shown on the Engineers Map (Ex. 4) which embraced much of the channel below the bridge and an extended area adjacent to the Kill which constituted roughly a triangle having the northerly line of the Kill as its base nearly 2,000 feet long, with a westerly side of nearly 1,500 feet, and an easterly side of better than 1,000 feet.

 The dredging equipment and the respective positions of the elements thereof are not in dispute: The dredge Crest was held by 3 spuds about 12 feet west of the center line of the channel, not more than 200 feet above the base of the triangle.

 The dredge Majestic outside the westerly line of the channel, but just within the dredged area and near the base of the triangle. Her presence played no part in these events.

 The dredge Toledo, also held by 3 spuds, about 80 feet east of the westerly line of the channel, and about 900 feet southerly from the railroad bridge. Her position is stated to have been the cause of the navigation of the Metropolitan tow. The Toledo is a steel dipper dredge (150 feet by 55 feet by 11.6 feet) without power for propulsion. Since the channel where the Toledo lay was not less than 500 feet wide, her position meant that the westerly half thereof was reduced by 135 feet, so that to her port hand (she was headed down stream) there was at least 365 feet of open water measured from her port side to the easterly edge of the channel.

 Since the dredging operations involved the removal of dredged material in barges, these were towed from alongside the dredges by the tug Jackson and hung up at a stake boat, where they were made up into tows and taken to sea.

 That stake boat was the GL.17, a steel dump scow (167.5 feet by 43 feet by 14.7 feet) held at anchor by a single chain swivelled to two anchors. Her position is important but not controlling. Manifestly she had to be out of the channel, and yet in waters of sufficient depth to enable her to function. The Metropolitan testimony is that she lay about 300 feet off (to the west) of the channel, which is perhaps sufficient for present purposes, although the Jackson's captain (Merrill) says it was 500 feet. He was better informed and his estimate is preferred. She was abreast of a point not less than 1,800 feet southerly from the Toledo, measured along the westerly side of the channel.

 Her position, as testified to by Merrill, shows a depth of 23 feet shoaling to 19 feet at Buoy C-3. She was headed southerly toward the Kill, in the flood tide, and 4 loaded scows were hung to her (the safe limit in number), each of sufficient size to carry 3,000 tons of dredged material.

 The incidents about to be related were not influenced by the presence of any other vessels in the vicinity, or by wind, or lack of visibility, as the night was clear but dark. All vessels here involved carried lights as required, which were burning. The tide was running flood at a strength of 2 knots, and it played a decisive role in what took place.

 It is undisputed that the set of the tide, from the southerly entrance to this channel as it moved from the Kill, was northwesterly toward Buoy C-3, that is, in the direction of the shoal waters (6 to 9 feet) to the immediate west of the channel and extending northerly from Buoy C-3 to and beyond the bridge. From that Buoy, the set is northerly and then northeasterly to the bridge, which is the direction of the flow of the channel.

 The Metropolitan tow consisted of the wooden diesel tug Metropolitan No. 3 (63 feet overall by 17.4 feet by 8.2 feet inside depth; h.p. 240) and 2 companion loaded sand scows in tandem at the end of 120 feet of towing hawsers made fast to the outside corners of the head scow (G-G No. 32). The scow astern, separated by from 2 to 4 feet of lines, was the G-G No. 202. Their dimensions were 112 feet by 33.1 feet, height of sides 10 feet, and since they were each carrying ...

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