The opinion of the court was delivered by: CONGER
This suit arises out of a collision between the U.S.S. Dover and the barge Poling Bros. No. 12 in tow of the tug J. Raymond Russell in the East River early in the morning of January 10, 1943.
The barge owner, Poling-Russell, Inc. sued the United States, who in turn impleaded the motortug J. Raymond Russell, the Newtown Creek Towing Company, the tug owner and the Russell Bros. Towing Co., Inc. who had the tug under bareboat charter. Subsequently the United States brought an independent libel against all the other parties to the first suit; and the two actions and impleading petition were consolidated for trial.
At the time of the collision the U.S.S. Dover was a commissioned vessel of the U.S. Navy in service as a gunboat and naval training ship of 1136 tons. She was 252 feet long with a beam of 40 feet and was powered by a triple expansion reciprocating steam engine with two propellers.
The Dover was on a voyage from Toledo via Boston to Staten Island, New York, and shortly before midnight on January 9, 1943, had picked up a pilot at City Island and had proceeded through Hellgate Channel and down the East River. On the bridge of the U.S.S. Dover at the time were the pilot, the executive officer, Navigator Shumway, Captain Brown, officer of the deck Waters, the wheelsman and signal man; a lookout was stationed on the bow of the ship. As it passed under the Brooklyn Bridge making 9 1/2 knots, personnel on board the Dover observed the red running light and white towing lights of a tug which was later identified as the J. Raymond Russell. The tow was not observed but the towing lights indicated one was alongside.
The Russell was about 3/4 of a mile away and was entering the East River on a course around the Battery. The Dover's position in the channel was a little to the right of center, or approximately 750 feet off the Manhattan pier ends. When the red light of the Russell was first sighted it appeared about a point off the starboard bow of the Dover. At this time the Dover sounded a two-blast signal proposing a starboard to starboard passing. The Dover heard no response to this signal; and the red light on the Russell was crossing from the starboard bow to the port bow of the Dover. Observing this, the Dover sounded a one-blast signal, and changed course 5 to 8 degrees to the right in order to pass under the stern of the Russell, the Dover pilot assuming that the Russell was navigating toward the Brooklyn shore. No answer was heard from the Russell. At the time of this signal, the Russell's red light was showing more than a point on the Dover's port bow, and seemed to be broadening. About a minute had elapsed since the two-blast signal. Less than a minute after her first one-blast signal, the Dover sounded another one-blast signal. Almost simultaneously the Russell's red light began closing and her green or starboard light opening. The Dover instantly put her rudder hard right, and her engines full astern. The Russell was heard to sound the danger signal. About a minute later the bow of the Dover struck the Russell six to ten feet abaft of her starboard bow. The Dover personnel did not actually see the barge until the vessels were within 70 to 100 feet of each other.
The Poling Bros. No. 12 is an oil barge 208 feet long, 42 feet in width, 14 feet in depth, with a free-board of about 3 feet. At the time of the collision it was half loaded, and made fast to the port side of the tug. Her bow protruded 125 to 135 feet in front of the tug's bow.
Her master, Captain Mikalsen, testified that she displayed two bright lights on her port side, one forward and one aft. The forward light was ten feet aft of the bow, and was raised about four feet above the deck. The aft light was five or six feet forward of the stern and was flush with the deck. The lights showed about 200 degrees around the horizon. Fisk, the tug pilot, corroborated Mikalsen, although he indicated that both lights were above the deck. No one on board the Dover observed these lights before or after the collision. Captain Haughn, the Dover pilot, observed two stern lights hanging from the barge's deckhouse after the collision. They had not been observed prior thereto.
The barge had no lookout, the captain having been in his cabin prior to the collision, and two other hands having been asleep.
The tug, J. Raymond Russell, is powered by a Diesel engine of about 525 horsepower and has a burden of 137 gross tons. Early in the morning of January 10, 1943, she was rounding the Battery on a course up the East River with the barge Poling Bros. No. 12 in tow on her port side. The Russell was displaying a white light forward, red and green sidelights and two white towing lights, which indicated she had a tow alongside. The pilot, Fisk, was navigating the Russell and her deckhand was in the pilothouse acting as lookout.
The Dover was first observed by those on board the Russell when the gunboat appeared to be under the Brooklyn Bridge in about the center of the East River and coming downstream. She was displaying a white masthead light, a range light and her red and green sidelights. The lights appeared to be about 3/4 of a mile away. The Russell at the time was about 400 to 450 feet off Pier 4, Manhattan, before she had completed her swing around the Battery. Her heading was toward the Brooklyn shore.
About the time the Russell was off Pier 5, she sounded a two-blast signal to the Dover for a starboard to starboard passing, and immediately put her wheel to the left and began to edge in toward the Manhattan shore. The Russell's pilot heard no answer to the signal but continued ahead assuming the starboard to starboard passing would be effected. The speed of the Russell against the two-knot ebb current was 2 to 2 1/2 knots. When the Russell arrived at a point about 350 feet off Pier 6, she sounded a danger signal and reduced her speed to half-speed. The Dover appeared to be off Pier 13 or 14, Manhattan, and was heading toward the Russell on a converging course with the Manhattan shoreline. The pilot of the Russell continued to anticipate a starboard to starboard passing. When the Russell reached about Pier 7, and the Dover appeared to be off Pier 9 or 10, the Russell blew another danger signal and backed her engines full speed, at the same time putting her wheel hard over left. About the time when the Russell blew her second danger signal, the Dover took a sheer toward the Manhattan shore, and the bow of the Dover shortly after struck the barge.
Since the barge was not in charge of its own navigation it carries no burden to justify it. That problem remains with the Russell. In addition, I am satisfied that no breach of duty on the part of the barge contributed to the collision.
The Government charges that the barge was at fault for failing to display the required lights.
Captain Mikalsen, the barge captain, and Fisk, the tug pilot, both testified that the barge was displaying the proper lights. It is true that the Dover personnel did not observe them. But the fact that they were not observable on the Dover does not in itself negative the assertion that they were on. The affirmative assertions of Mikalsen, who was charged with the duty to display the lights, and of Fisk are entitled to greater credence than the testimony of those on board the Dover that the lights were not seen. The Buenos Aires, 2 Cir., 1924, 5 F.2d 425; The Mamei, 3 Cir., 1945, 152 F.2d 924.
The Government further charges that the lights, assuming they were on, did not comply with the Rules in that the forward light did not show an unbroken arc around the horizon. Mikalsen admitted the light showed only 200 degrees; and this is a violation of the Rules.
And the barge's admitted failure to have a lookout was an additional violation. Article 29, Inland Rules, 33 U.S.C.A. § 221.
But the barge's derelictions were not a substantial factor in causing the accident.
Captain Haughn, the temporary Hellgate pilot of the Dover, testified that he observed the two towing lights of the tug, and he then knew that it had a tow alongside. I quote from his testimony.
'Q. When you first saw this red light on the tug, what other lights did you see on the tug? A. I saw her towing lights.
'Q. How many towing lights? A. Two.
'Q. What color were they? A. ...