The opinion of the court was delivered by: BYERS
The libellant's stick lighter Globe was in contact with the stern of diesel tug Cornell No. 21, as the former was being towed out of the slip between Piers 54 and 56, N.R., by the diesel tug W.S.A. No. 22 around 5:00 P.M. on February 2, 1945, and the only dispute is whether the Cornell tug backed into the lighter. If not, the lighter struck the stern of the tug while the latter was nosing into the northerly side of the pier, about 30 feet from the river end.
The libellant has sued the tug and the Government which owned and operated the W.S.A. No. 22. The fact of damage is conceded, so that the agency thereof as the only subject of controversy.
The lighter had been taken in charge at Pier 59 by the W.S.A. No. 22, to be towed directly across the river to Pier 9 Hoboken, but the maneuver was difficult to accomplish because of the presence of heavy ice on the New York side of the river, an ebb tide of 1.2 knots' strength which set toward Pier 54, and a northwest wind of 35 miles force which had the same effect, since the lighter was unladen and had 8-foot exposed sides.
The Globe was taken out into the river from Pier 59, stern first, on a head line from the No. 22, the intention of the latter being to come alongside to port, rig bow, stern, and towing lines, and so proceed to destination. But the lighter got out of control because the tug's side fender caught on the lighter's corner, throwing the tug out of shape; the Globe got away and was carried by wind and tide into the slip north of Pier 54. There the tug overhauled her, and got alongside, backed and filled, finally circling in the slip to the tug's starboard side, and then the tow proceeded out of the slip, the lighter being on the tug's port side, and in that movement the striking occurred.
The testimony is convincing that a bow and towing line were made fast, but no one was called who could or would testify that the same was true of the stern line. Reilly, the captain of the No. 22, said that he could not see the stern line from his pilot house, and that it was handled by a deckhand. The name of the latter was not given, nor was he called, nor his absence explained.
The make-up of the tow as described by Reilly puts the bow of the tug some distance ahead of the forward end (the stern) of the lighter. Their respective dimensions were 100 by 30 feet for the lighter with 10-foot sides (she drew about 2 feet); W.S.A. No. 22, 81.1 by 24 feet, H.P. 700.
The housing of the lighter (living quarters, and engine house, 20 feet wide, 10 feet long, and 8 feet high) was a trifle forward of the pilot house of the tug; thus the view from the port window of the tug's pilot house toward Pier 54 was obstructed, as this movement was under way, not only by the housing, but by a hoisting coop on the roof of the cabin, 7 feet high, 6 feet wide and 7 feet deep.
The Cornell tug had just landed a pontoon -- a breasting off raft -- 100 by 4 feet, which it had taken on two lines from Pier 56, and these lines were transferred from the tug to the pier; the men who handled these lines were employed by the Cunard Line operating the pier.
Their last names were unknown to the Cornell tug's captain and they were not called as witnesses, and his testimony stands unrefuted, that they had not completed their task, and the tug was holding bow on against the pier, waiting for them to rejoin her for further shifting operations of another pontoon. The tug's engines were working slow ahead. This position of the tug was observed by Reilly, captain of the W.S.A. No. 22 as he moved out toward the river end of the slip.
The lighter's captain, Larson, is relied on to establish the fact that the tug actually backed into the Globe, and it is common ground that he called out to the Cornell tug to that effect immediately upon the taking place of the contact. He so testified, and both tug captains agree. This means that Larson then believed such to be the fact.
The balance of his testimony is so clearly disproved as to cast doubt upon the accuracy of the contemporaneous exclamation to which he gave vent.
He is shown to be wrong as to the place where the striking occurred, which he stated to be in the river off the slip; the position of the Cornell tug, and the make-up of the tow as then constituted. These discrepancies led to an eleventh hour change in answers to interrogatories, and in the Government's answer to the libel.
Larson was a sick man at the time of the trial, and his testimony, save as to his assertion at the ...