The opinion of the court was delivered by: KAUFMAN
These consolidated suits arise out of a collision in New York Harbor on December 11, 1946, between the S/S Marjory, owned by libelant Compania Punta Alta, S.A. (hereinafter referred to as Compania) and the S/S Joseph E. Wing (now the S/S Emanuele V. Parodi), a dead ship in the tow of four tugs owned by Dalzell Towing Co., Inc. Compania brings this libel for $ 25,000 damages against respondent Lloyd H. Dalzell (hereinafter referred to as Dalzell) in personam and the four tugs, in rem. The libel was originally brought against the Wing also, and Dalzell impleaded the United States of America as owner, and the United States Maritime Commission, but that libel and impleading petition were subsequently dismissed by consent of the parties. Thereafter, the Insurance Company of North America and others, as insurers of damaged cargo aboard the Marjory, brought a libel against Dalzell for damages arising out of the collision, and Dalzell filed a cross-libel against Compania for recoupment in the event of a recovery by the insurers against Dalzell.
The facts appear to be these: At about 4:25 P.M., December 11, 1946, a tow made up of the four Dalzell tugs and the dead ship Joseph E. Wing left Shewan's Shipyard in Gowanus Bay. The Wing was a Liberty ship of 7,176 gross tons, with a beam of 57 feet and a length of 422.8 feet. The tug Captain Albert F. Bennett was in the lead, a hawser running from her stern back to the stem of the Wing. Made fast to the Wing were the other three tugs; the Lloyd H. Dalzell on the Wing's starboard bow; the Dalzellite on her starboard quarter; and the Dalzellace on her port quarter. The overall length of the tow was between 800 and 1000 feet.
The Wing was due to be laid up and, as such, she was without power when Dalzell took her into tow. The entire tow was headed for 134th Street, Hudson River. It got under way from Shewan's and proceeded out of Gowanus Bay, up Red Hook Channel, and then turned left at about Red Hook. Its heading was roughly northwest as it passed below the southern end of Governor's Island made for the western side of the Main Ship Channel. Once it cleared Red Hook, the course of the tow was set by the tug Bennett, with Captain Bennett, himself, in charge.
At about 4:47 P.M. the S/S Marjory, a freighter of 2,323 gross tons, 251 feet in length and 43.6 feet in beam, undocked from Pier 20, East River, and was bound to sea on a course that took her down the East River, around the northern end of Governor's Island and roughly southwest toward the center of the Channel.
During the time the tow and the Marjory were each heading toward the Main Ship Channel, the Staten Island ferry, Dongan Hills, was proceeding north from Staten Island to the Battery along a course which skirted the eastern edge of the Channel or the western side of Governor's Island.
Weather was good and visibility excellent. There was a strong ebb-tide running between 4:30 P.M. and 5:00 P.M., and darkness was falling.
At about 5:00 P.M. the Marjory and the Wing collided close to Buoy 31A on the westerly side of the Channel. The port side of the Marjory, approximately abreast of her foremast, struck the stem of the Wing at almost a right angle. The tug Lloyd H. Dalzell, which was on the starboard bow of the Wing, cut her lines to avoid being crushed between the two vessels. Shortly thereafter, the Marjory repaired to anchorage off the Statute of Liberty, and the Wing and her assisting tugs proceeded up the Channel toward New York. As a result of the collision, the Marjory and her cargo allegedly sustained damages of $ 25,000. There was no damage to the Wing or the tugs.
The detailed factual allegations and contentions which follow are in sharp dispute. In substance, Compania claims that the entire Dalzell towing operation suffered from divided command with resulting negligent navigation for which Lloyd H. Dalzell is liable in personam, and the four tugs are jointly and severally liable in rem; that there was no justification for the tow being on the west side of the Channel, which was the wrong side; that the Wing showed no visible green, or starboard, side light; that the tow failed to respond to a signal proposing a port-to-port passing and failed to comply with the 'Half-Mile Rule'; and that in the few minutes just prior to the collision the whole tow was coming out of Buttermilk Channel on the south side of Governor's Island and was zigzagging roughly northwestward across the Main Ship Channel when the Marjory proposed the port-to-port passing. Dalzell, on the other hand, alleges that Compania was negligent in failing to see the Wing's green side light and failing to hear the alarm signals given by the tug just prior to collision; and that the Marjory's acting on her unanswered proposal for an unwarranted port-to-port passing with the two was the proximate cause of the collision.
The divergent testimony in this case is not unusual in such suits. Judge Learned Hand has said: 'However, it has long been the custom of admiralty judges to accept a story generally, of which they are obliged to reject the particulars, mending it, as it were, in its weaker spots. Indeed, it would often be quite impossible otherwise to reach any decision at all, for the ardor of each side frequently colors both versions too much for the complete acceptance of either.' The Bellhaven, 2 Cir., 1934, 71 F.2d 206, 208.
Prior to leaving Shewan's, the tug captains, one of whom was the pilot on the bridge of the Wing, had no verbal agreement as to who was to command the operation. The evidence indicates that the course of tow was to be set by the Wing's pilot until she cleared Red Hook. Thereafter the captain of the lead tug Bennett was to set the course through the Main Ship Channel and up the North River. Although there was telephonic communication among the tugs, there was none between the tugs and the Wing. Communication between the tugs and the Wing was carried on by means of oral messages given through a megaphone and exchanges of mouth whistle signals. Since the Wing was without power, these methods of communication seem reasonable and appropriate under the circumstances. The absence of any verbal agreement as to command of the tow does not have any compelling effect. Indeed, the Bennett, with the acquiescence of the others in the tow, set the course for crossing the Main Ship Channel and heading to the tow's North River destination, and the Bennett was in fact in command at the time of collision. I am not convinced that the command of the operation, in so far as it is material here, was divided. The tug captains and Wing pilot at all times understood the course the tow was to take and the course set by the Bennett was followed without dissent or misunderstanding. Whatever negligence may be imputable to Dalzell does not turn on the method of command utilized during the tow.
The location of the ships at the time of the accident is of importance. Both the Wing and the tow were on the west side of the Channel just prior to the collision. Article 25 of the Inland Rules, 33 U.S.C.A. § 210 provides: 'In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies on the starboard side of such vessel.'
The Main Ship Channel to the west of Governor's Island is a narrow channel within the scope of this rule. The Bee, 2 Cir., 1905, 138 F. 303; The La Bretagne, 2 Cir., 1910, 179 F.2d 286, certiorari ...