The opinion of the court was delivered by: BYERS
Decision is here required concerning fault for a collision between the libelants' oil barge Poling No. 15, and the Long Island carfloat No. 22 in the upper bay in the vicinity of the mouth of Greenville Channel, on March 24, 1947 at about 5:30 A.M.
The cause was laid against the tug Chester having The No. 22 in tow on her starboard side, and her owner the Pennsylvania Railroad. The latter claimed the tug, and impleaded the tug Russell No. 3 which had The No. 15 in tow.
The issue is more simple in statement than in resolution, namely: Did The Chester maneuver her tow (there was a carfloat also on her port side, both laden, and the make-up being in the customary pigeon-toed form) so as to swing into and interfere with the apparent course of the other tow the presence and heading of which were clearly and timely observed by The Chester.
I can find in the testimony no answer except in the affirmative, for reasons to be shown.
Only the matters in dispute will be stated as findings since the controversy is limited to the issue stated.
The only physical condition of importance is the force of the ebb tide, for it is agreed that neither wind nor lack of visibility contributed to the happening. Day was about to break on a clear morning and the testimony is that each tow became aware of the other in ample time to take proper precautions to avoid trouble; in other words, the collision should not have occurred.
The Russell tow consisted of the oil barge Poling Bros. No. 15, laden, which was towed alongside to port of the Russell No. 3. The former is a steel vessel 208 x 42 and as laden, had a freeboard midships of 3 feet. The tug is of the diesel type, 450 h. p. 69 x 20 and had a draft of 10 1/2 feet. Her stern was about 5 feet forward of that of her barge. Departure from Port Newark was had at 3:10 A.M. destination Pier 7 N.R. The make-up of both tows is free from criticism, as is the power of the respective tugs. It is also agreed that both tows were displaying all proper lights, which were showing. The Russell tow proceeded in a northerly direction at an estimated speed of between 3 and 4 knots against this ebb tide. As this tow was off the Greenville Channel where it meets the upper Bay, her position as indicated by both navigators on the chart (Lib. Ex. 1) when about abreast of Flashing Green light buoy was not less than 700 feet therefrom. (They both estimated the distance to be greater than that.) In that approximate position of the Russell tow, the latter observed the Chester tow in the Greenville Channel, heading out in an easterly direction; the latter also saw the former on its heading as stated.
The elements of the Chester tow were the tug (95 x 25 draft not stated) 750 h.p.; the steel carfloat L.I. 22 to starboard (330 x 43) and the L.I. 2u (290 x 40) to port, both fully laden with freight cars. The bow of the tug between the floats was about 160 feet aft of the bows of the floats. Standing in the pilot house of the Chester, her navigator could see over the tops of the cars, except down to a space of about 30 feet off the far side of the floats. The Chester tow had left Pier B of the Pennsylvania Greenville freight yard at about 5:15 A.M. some 15 minutes or so before the collision. Her speed prior to reaching the buoy is said to have been about 3 m. p. h.
There was no look-out posted on the Poling No. 15, or on either of the floats, but since both navigators say they observed the other tow, when The Russell was off the Greenville Channel, this omission cannot be deemed to have constituted a fault which contributed to the collision.
It is found (a) that when the tows came into mutual sight a crossing situation was in the making, in which the Russell tow would occupy the holding position, and the Chester tow was the burdened element.
The destination of the latter was Long Island City, i.e., across the Bay in a generally northeast direction to and around Governor's Island.
No whistle signals were exchanged between these tows until both blew alarm signals a few seconds before a collision. That striking was between the starboard bow of The 22 and The Poling 15 at about 5 feet forward of the latter's port stern corner.
The impact is so described in the impending petition. Dennen's testimony-'He landed broadside of me as far as I could see * * * just abreast the bow of the tug up against the float * * *'- is assumed to refer to the bow of The Chester, 150 feet aft of the bow of The 22, but Dennen couldn't see the collision, as has been said.
That event occurred after the Chester tow had begun to round the Flashing White buoy at the northerly edge of Claremont Channel just to the north of Greenville Channel, and since the rounding maneuver concededly took place, the question for decision is whether it was conducted so close to that buoy that the Russell tow could not have been struck unless it sagged over so as to interfere with its accomplishment; or whether the Chester swung around so broadly off that buoy that The 22 was brought into danger of contact ...