The opinion of the court was delivered by: BYERS
The coal barge Long Island, while in tow upbound in the Arthur Kill, was struck on her port side about 30 feet from her bow by a descending tanker, The M/V Gefion, in the vicinity of Tremley Point, and decision is required to fix responsibility for that occurrence.
The date was May 19, 1945, at around 12:30 P.M., under clear weather conditions of good visibility, with no complicating factors of wind force or direction. The tide was flood of an estimated speed of from 1 1/2 to 2 miles, meaning it was underfoot as to the tow.
The latter consisted of the barges Long Island fully laden with coal (about 1,000 tons) and The Grenada half laden similarly; they were made up abreast, The Long Island being to port, and they were in tow to the Pennsylvania steamtug Amboy, by steel cables to their outer corners, about 100 to 125 feet long.
Following astern was the steamtug St. George, having a seagoing barge made up alongside to port. The consensus of testimony is that she was about 600 feet astern of the Amboy tow, in about the middle of the channel, but perhaps heading to pass ahead eventually on the port hand of the Amboy tow, since the former was moving somewhat faster, but that intention, if entertained, did not take effect prior to this collision, and there had been no signals exchanged between these tows to announce such a purpose. Argument on this subject is pure conjecture, not supported by any testimony.
The Gefion was light, proceeding under her own power, and failed to round Tremley Point in her starboard side of the channel, but in making the effort to accomplish a port passing with the Amboy tow, she struck The Long Island as stated.
The owners of the latter filed a libel charging faults on the part of The Amboy and The Gefion, which the latter denied, and also impleaded The St. George and her owner, asserting faulty navigation on the part of that tug, as the cause of the collision. Thus the issues went to hearing, with amendments to the libel, not of consequence, on the question of responsibility.
The Arthur Kill is a narrow channel (400 feet wide) running about north and south above and below Tremley Point which projects from the New Jersey side sufficiently to cause the channel to describe substantially a semicircle to the east, with a straight stretch at the top of about 300 yards constituting the frontage of the Point. This means that a descending ship turns almost 45 degrees to her port off buoy 9 (Gefion Ex. A. U.S.C. & G.S. Chart 285), continues then straight ahead until off the mouth of Prall's Creek, where she turns to starboard about 22 degrees and continues straight for about 300 yards; then she turns about 45 degrees to starboard and continues straight ahead in that course until nearly to Carteret on the New Jersey side. The waters important to this cause comprehend that channel for a space of about 2,000 yards laid out therein northerly from the mouth of the Rahway River.
The evidence is uncontradicted that The Gefion and the Amboy tow were each making from 5 to 6 knots over the ground before either was aware of the other; thus their approach was at the rate of 10 to 12 knots, The Gefion from the north and the Amboy tow from the south.
That was the condition when it became the duty of each to blow a bend whistle (Art. 18, Rule V, Inland Rules, 33 U.S.C.A. § 203) when arriving within one-half a mile of the bend around Tremley Point.
It will be convenient to consider the faults attributed to the tow by The Gefion, since it is concluded that she struck The Long Island because it was the latter that was damaged, and the witnesses for the ship do not assert the contrary; the testimony is that there was no damage to The Gefion's stem, which would be consistent with the impact having been delivered by that ship.
1. As to The Amboy's blowing a bend whistle as required:
Johansson, the tug's captain, McCabe, her pilot, not on duty but in the pilot-house, and Sepka, her first deckhand, also on duty, are convincing to the effect that The Amboy seasonably blew a bend whistle. The first says: 'When about passing Rahway River I heard some signals on the other side of the point, but I couldn't see anything so I sounded a long blast on the whistle.' The other two witnesses bear him out, and the only question is whether 'off the Rahway River' was precisely one-half a mile from the bend. It could have been, or the reverse, but in any case it was not heard on The Gefion, according to her trial testimony. (Duncan's testimony at the Coast Guard hearing refers to a one-blast signal from The Amboy when he could see her, which was probably her port passing signal.)
I think there was a reason for that, since the latter was exchanging a two-whistle starboard passing signal with a tug at the Sinclair dock as the ship approached the point, which may have interfered with attention to a possible bend signal from below. The further away that signal came from, the greater the chance of its not being heard, but I am satisfied that it was blown, and so find, and that it was at a sufficient distance below the bend to establish compliance on the part of the tug Amboy with the applicable Inland Rule.
The tow, which had been proceeding in mid-channel, at once sought the starboard side and got so far over that The Long Island was at that edge of the channel or beyond, when she was struck. That maneuver was consistent with the hearing of a Gefion bend signal, and the answering of it. The movement, McCabe says, was to buoys 6 (now 20) and 8 (now 22). It will be understood that it is necessary to either accept the Amboy testimony or reject it as inherently unconvincing, since there is nothing to controvert it in The Gefion's case. I observed nothing in the demeanor of the witnesses to discredit their testimony, but on the contrary was impressed with the probable truth of what they said.
This finding is not impaired by the argument that The Amboy's bend whistle was not sounded until The Gefion's two-blast exchange was heard, and therefore The Amboy was then less than one-half a mile from Tremley Point at which distance she was required to sound her own bend signal. The argument is plausible but not convincing, since The Gefion's then position with reference to Tremley Point would not necessarily establish like datum as to The Amboy, because of The Gefion's changes in speed, and The ...