The opinion of the court was delivered by: BYERS
These causes, tried together, involve one state of facts, but will yield separate decrees; they arise from the collision between the claimant's S.S. J. H. Tuttle and the scow Rosebush, in the second tier, port side, of a three tier tow of the tug Flushing, which was proceeding northerly in the Arthur Kill, on April 1, 1947.
The place is agreed to have been generally between Buoy 4 marking the channel's easterly line, and the Barber Asphalt Plant dock on the New Jersey side.
The Tuttle had passed this tow (Tuttle Ex. 1) off the Perth Amboy ferry (circled in red, id.) to port; that is, the tow was on the New Jersey side, having left South Amboy bound for New York harbor. The weather was clear and did not affect the navigation of either the ship or the tow. The tide was flood, i.e., under foot as to both, and was of a strength of about 2 knots. There was no other navigation to be reckoned with and the sole question of fact is clearly presented, namely: When The Tuttle was turning to port to effect a landing at the Barber plant, and the tow was passing astern, pursuant to the ship's signal of one blast, did the ship back into The Rosebush, or was the tow strung out diagonally in the channel so that as it moved ahead The Rosebush was necessarily brought into collision with the ship's stern while the latter was still in the water, or in the act of turning toward the New Jersey shore?
The physical conditions require statement:
The ship is a steel tanker, 547' by 70', and being laden, was drawing 30' 6'. Her tonnage is 11,658.
The 35-foot channel is 400 feet wide, and the chart shows a depth of 30 feet at its westerly side, which increases to 37 feet off the Barber plant, some 450 feet or so west of that channel line. Toward the Staten Island side there is a depth of 20 feet immediately east of the channel on that side. Thus it will be seen that to turn the 547-foot ship in a semi-circle having a diameter of nearly 900 feet and so as to bring her alongside the Barber dock, in a flood tide, did not require a miracle of navigation, but rather care and circumspection. To aid in the movement there were two Dalzell tugs in position on the ship's starboard side, but the evidence as to how and just when they functioned is negligible.
The Flushing is 83 feet on the line, 90 feet overall by 22.5 feet by 8.4 feet, with horse power 750.
Her tow consisted of five laden wooden coal scows in two files, three to port, two to starboard; the first two tiers therefore had two scows abreast, and the third but one, which was tailing the second on the portside. These craft were of an average length of 116 feet, average beam of 36 feet and average depth of sides of 9 feet. The gross tonnage was 325 minimum, 379 maximum, which means that they were all of about the same size; the make-up of the tow is not criticized.
Towing hawsers, 125 feet long, ran from the tug to the outside corners of the head scows. Roughly, the tow measured about 560 feet from the bow of The Flushing to the stern of the last scow, and the greatest width was about 75 feet.
The Rosebush, owned by libellant in the first cause was in the second tier, to port and, as above stated, was in collision with the tanker. Just ahead was the port hawser scow Seaboard No. 60, and astern The Seaboard No. 35. The starboard hawser scow was The Seaboard No. 47; the second cause is based upon damage to these three, said to have resulted from the Rosebush collision, libellant Red Star Barge Line, Inc., being the owner of those vessels.
The Tuttle entered the 35-foot channel from the east at about the time the tow was proceeding out of South Amboy in the 20-foot channel; those converge about off the ferry slip which has been mentioned; the ship blew a one-blast signal to pass ahead to starboard, to which the tug assented, and in that order both proceeded up the Kill, the ship making about 6 knots and the tow about 4. The ship was about in mid-channel, and the tow favored the New Jersey side until it rounded Ploughshare Point on the latter, where it tended to swing wide, and then straightened away for the next reach of the Kill, in about mid-stream. When the tug itself was about under the Outerbridge and the ship was about half a mile ahead, the latter, by way of initiating the maneuvers necessary to complete the half circle to port and come alongside the Barber dock (which extends along the Kill) on the New Jersey side, blew one blast to signify to the tug that 'I didn't want her to go down (sic) inside of me, in other words, towards the Jersey shore from me. And then I blew three blasts to signify my engines were going astern.'
At this juncture The Tuttle was about half-way between the Outerbridge and the Barber plant. Her signal indicated her destination and maneuver, which was understood on the tug, and the latter blew a one-blast acknowledgment. The Mate, McVay, was navigating the tug, and his statement that he thus became aware for the first time of the ship's purpose was convincing, and is accepted.
From that time forward, the tug and the ship were acting under an agreement, although the latter did not hear the answering blast from the former. The ship repeated both signals after a short interval, and the tug's answer of one blast was heard, so that the mutual purpose was clearly understood when the tug was not more than a quarter of a mile above the Outerbridge, and The Tuttle was about that distance ahead of the tow, and probably a little more. When The Tuttle was one-half or two-thirds of the distance between the Outerbridge and the Barber plant, the tow was estimated to be then not less than 1,500 feet astern.
The ship's pilot looked astern and observed that the tug at once 'altered his course to his own starboard * * * maybe right underneath it (Outerbridge)'. The tug was then in 'a straight course in the channel.'
In resolving the narrow question which has been indicated, it may be helpful to state the issues presented by the pleadings. Since they are substantially the same in both causes, it will be understood that references stated in the singular should read in the plural.
The libel is against The Tuttle and in effect alleges that she 'backed down and into the tow'. The answer denies this and asserts that, after the exchange of signals above recited, The Tuttle started to swing to port, assisted by the tugs, and that 'The Flushing continued on hooked-up and passed clear of the stern of the Tuttle and then stopped her engines whereupon the tow was swung around on the flood tide and one of the scows in the tow, the Rosebush, fetched up under the Tuttle's counter and came in contact with the latter's stern * * * At no time did the Tuttle back up or gain any sternway prior to the collision.'
An impleading petition under the 56th Admiralty Rule, 28 U.S.C.A., was filed with the answer, directed to The Flushing and to the Red Star Towing and Transportation Company, as owner, which contains substantially the quoted allegations. The important specifications of fault are that the tug:
3. Failed to keep clear in overtaking The Tuttle.
4. Failed to reach an agreement with the overtaken vessel before proceeding to pass The Tuttle.
This is contradicted by The Tuttle's evidence and is now disregarded.
5. Failed to keep on her own starboard side of the channel according to Article 25 of the Inland ...