The opinion of the court was delivered by: BONDY
Libel to recover damages by the Manhattan Lighterage Corporation, as owner and operator of the Steamlighter Betty Lee, against the United States, as owner of the S.S. Robert Battey. The United States impleaded the Joseph Auditore Stevedoring Corporation, and also filed a cross-libel against the Manhattan Lighterage Corporation.
On November 20, 1944, the Government-owned Liberty ship Robert Battey was moored on the north side of Pier 1, in the public slip between Municipal Piers Nos. 1 and 2, in the Hudson River, with her bow towards the New York shore and her stem about 10 to 20 feet from the bulkhead. The Battey had an overall length of 441.8 feet, and a beam of 57 feet.
Parallel to the Battey, and about 15 feet to the north of her port bow, there was moored the steamlighter Betty Lee. Her stem was at the bulkhead, about 90 feet to the north of Pier 1, where one of several hydrants is maintained by the City of New York for the convenience of tugboats and other vessels.
At the easterly end of the slip, Pier 2 projected into the slip 130 feet southwards for a distance of 140 feet westwards of the bulkhead, thereby reducing the slip to a width of only 240 feet at its shoreward end. Pier 2 on the north side of the slip was about 655 feet long; Pier 1, which constituted the southern side of the slip, was 450 feet long.
The Betty Lee had an overall length of 85.5 feet, a beam of 29 feet, and a mast forward of the pilothouse 65 feet in height, to which was attached a boom 68 feet long. The height of her cargo deck above the water line was 5 feet 2 inches. Counsel for libellant stated that he had measured the height of the pilothouse's floor above the cargo deck, and found it to be 7 feet.
About 1:00 P.M. that day, stevedores in the employ of Joseph Auditore Stevedoring Corporation, the respondent-impleaded, began to rig the Battey in preparation for discharging dunnage from holds 1 and 2 and ballast from hold 4 into lighters or barges which were expected alongside later that day. The stevedores accordingly lowered to an angle of about 45 degrees over the Battey's port side one boom from each of the three masts. A qualified witness testified that the naval architect's plan shows that when a boom is swung outwards and lowered to an angle of 45 degrees, it extends about 14 feet beyond the ship's side.
After finishing their rigging at about 3:30 P.M., the stevedores awaited arrival of the scows or barges. At about 4:45, their foreman received word that they should not wait longer but should leave the vessel for the night. Despite testimony of some witnesses that they did not observe any cluster light, the court believes there was a cluster light affixed on the Battey's port railing off No. 4 hatch before the stevedores left, to direct any scow which might arrive during the night to the place at the Battey's side at which to make fast. The floodlights on the Battey's masts were also turned on at dusk and illuminated hatches and deck. However, these floodlights were not affixed at the top of the masts, but on a level considerably below the top part of the outswung booms, and thus did not illuminate the farther part of those booms. These floodlights appear to have been equipped with reflectors, which probably focussed their rays on the hatches and deck and not on the ship's sides.
About 6:00 P.M. that day, Captain Rajner Raner took command of the Betty Lee. He had never before been aboard that lighter. The Betty Lee cast loose from the bulkhead some time after 11:00 P.M. The night was dark, the sleet and rainfall heavy, the wind northeast at about 19 miles an hour, and the tide slack flood.
Beside her master, the Betty Lee was manned by an engineer, a deckhand and two firemen. The deckhand was not acting as lookout while the lighter was leaving the slip, but remained in the galley. The engineer and firemen were in the engineroom. The only eyewitness to the Betty Lee's maneuvers after she cast off was her master, Captain Raner. Although his deposition is not clear, it appears to have been his recollection that when the Betty Lee started to leave the bulkhead, two or three other harbor craft, perhaps tugs and barges, were moored at the bulkhead north of his lighter and south of the projection of Pier 1. Captain Seller, a disinterested witness, who on the night in question was in command of the tug Dalzellance, testified that his tugboat had been at the bulkhead between Piers 1 and 2 at 11:15 that night. Thus it appears that there was at least one craft lying at the bulkhead between the Betty Lee and the projection at the inshore end of Pier 2.
Captain Raner apparently backed the Betty Lee to port and then went ahead to starboard. It is not clear whether there was only one movement astern and one forward, or whether there were repeated backings and fillings. In view of the limited space, the latter seems more probable. While proceeding ahead, and, according to Raner's deposition, close-shaving the Battey's port side with a clearance of only six inches to a foot, the Betty Lee's mast and boom struck either the guy wire securing the boom or the boom itself which projected from the Battey's mizzenmast abaft the number 4 hatch beyond the Battey's side. The collision broke the Betty Lee's mast, which fell backwards and damaged the pilothouse, and bent the Battey's boom. The Betty Lee then proceeded under her own power to the Jersey City Drydock.
Section 409 of Title 33 of the United States Code Annoted provides: 'It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft * * *.'
A slip between private piers is a navigable channel within the meaning of the statute. National Forwarding Co. v. Payne, etc., D.C., 297 F. 663. All the more, the waters in a slip between two public piers must be deemed part of the navigable channel.
The Court of Appeals for this Circuit held liable for obstructing navigation a dredge which, while moored in a channel almost twice as wide as the slip here involved, permitted its anchor to hand downwards into the water but apparently not out beyond its side. The Overbrook, 2 Cir., 142 F. 950, 952. The court stated: 'The test of responsibility for so exposing such a vessel (one lying at a pier) or its tackle that it is liable to injure another vessel is whether it is a 'dangerous exposure'; that is, 'an exposure that is clearly liable to receive or inflict injury in the ordinary chances, mistakes, or hazards of navigation, such as are to be reasonably apprehended as liable to arise." Citing The Mary Powell, D.C., 31 F. 622, affirmed C.C., 36 F. 598.
The slip between public Piers 1 and 2 was an exceedingly busy one, frequented by tugs, scows, barges and stick lighters like Betty Lee; and on its bulkhead hydrants were maintained for the convenience of harbor craft. The Battey, with her 57 foot beam, had already reduced the available space in the slip to about 310 feet at its western, offshore end, and to about 180 feet at its eastern, inshore end, and in these 180 feet of space still remaining at the bulkhead were moored the Betty Lee, the tug Dalzellance, and perhaps, if Raner's recollection was reliable, two other harbor craft. The eastern end of the slip thus was crowded, and it was an unjustifiable obstruction to navigation on the Battey's part to take up 14 feet more of the space to her port side, and thereby to make the part of the slip under these booms either unavailable or highly hazardous for stick ...