The opinion of the court was delivered by: BYERS
These causes involve a collision in that part of the Arthur Kill which lies northerly of Howland Hook, Staten Island, on May 26, 1948, at about 6:40 p.m. D.S.T. between the steamtug Spartan on the port side of the tanker Archers Hope (to be called the Hope) and the diesel tug Magnetic lying alongside the coal barge Fox, the position of which will be stated.
These tugs came into non-violent contact as an incident to the movement of the Hope westerly in this reach of the Arthur Kill, bound for the Cities Service plant at Linden, N.J., while the Fox was the port barge in the third tier of the nine-barge tow of the tug Patience, there being three tiers of three each; the tow was bound up the Kill to the stake boats in New York Harbor, which means that it had to round Howland Hook by making about a 40 degree turn to starboard, and it was the swing of the tail of the tow toward the Jersey shore which brought the Magnetic into a position ahead of the Hope and the Spartan, off the Recreation Pier at Elizabethport, with the result that the collision occurred as stated, and the Magnetic was forced against the Fox and the latter against the barge Hillside, which was being towed alongside, causing damage to both.
The Hope was carrying a full cargo of oil and drew 31.3 forward and 29.8 aft, and all the barges in tow of the Patience were fully laden with coal.
The Hope was 542 x 68.2 and alongside to port was the Spartan, 105.9 x 25.1, and to starboard the tug Olsen, having a beam of 23 feet (her length does not appear); both tugs were made fast about one-third aft of the ship's stem, to assist in docking and as might be needed in clearing bridges, such as the B. & O. bridge shown on the chart, Patience Exhibit 1; there tugs had not been called upon to function and not being under power were in effect being towed by the Hope, which is of moment as to the handling of the Spartan at the time of the collision. The combined width of the Hope and her tugs was not to exceed 120 feet.
It may be assumed that the coal barges were all of about 100 feet in length and between 30 and 35 feet in beam, which would mean that the width of the tow would not exceed 115 and 120 feet except in the last tier where, it will be recalled, the Magnetic was alongside the Fox, and her beam was 21 feet. The steamtug Patience was the towing tug (her power is not criticized), having out hawsers running to the port and starboard corners of the barges in the first tier, of about 200 feet. Thus, the tow measured from the stem of the Patience (which was 122.3 feet long) about 650 feet overall.
There was a flood tide moving up the Kill of a strength of one to one and one-half m.p.h., which took effect on the tail of the tow as the effort was made to round Howland Hook, swinging it out into the channel and across the center toward the Jersey shore. The effect of such a tide on such a tow was well known to those who navigated these waters, i.e., navigating officer of the Hope, Fitzgerald, who was the captain of the tug Spartan but acting as pilot on the bridge of the tanker on this occasion.
The Magnetic was placed alongside the Fox, as has been stated, for the purpose of assisting the tow to keep in its starboard side of the channel, and since her position was observed on board the tanker, and she was expected to function, this decision will necessarily involve the extent to which she preformed her duties, and how far the navigator of the tanker was justified in expecting that the tail of the tow would not be allowed to swing so wide that the ship and her attending tugs would not be able to effect the agreed passing.
The findings later to be stated, will be confined to the disputed questions of fact.
The collision gave rise to the four causes listed above.
No. 18932: The owner of the barges Fox and Hillside sues the Hope, the Spartan, the Magnetic and the Patience, alleging that the force of the collision between the tugs, as stated, drove the Magnetic forcibly against the Fox and the latter against the Hillside, causing damage. The important faults alleged against the Hope are that she failed to carry out a safe passage and to keep to her starboard side of the fairway, and that she failed to stop and back so as to avoid the collision, and that she was proceeding at an excessive rate of speed.
The same faults are alleged against the Spartan.
As to the Magnetic, that she failed to proceed on her starboard side of the fairway and to arrange a proper and safe passage with the Hope and Spartan, and failed to take timely action in releasing her lines from the tow and 'in that she remained at her position alongside the barge Fox in the face of an impending collision.'
As to the Patience, that she failed to arrange and carry out a safe passage with the Hope and the Spartan, and failed 'to proceed with her tow on their starboard side of the fairway.' Also that she attempted a passing with the other vessels 'knowing that the tug Magnetic was made fast to and proceeding alongside of libellant's barge Fox and was not proceeding on her starboard side of the fairway.'
The answer of the Hope alleges faults on the part of the Magnetic 'in that she failed to take timely and suitable action to avoid the impending collision;' and on the part of the Patience that she failed to keep in her starboard side of the channel after exchanging signals for a port passing.
The Spartan answers in effect that she was subject to orders respecting her navigation by the pilot of the ship.
The answer for the Magnetic by her owner, the Tice Towing Line, alleges the interchange of signals between the Hope and the Patience and as the latter proceeded toward and around the bend, 'the tug Magnetic at this time was pushing on the port stern boat (the Fox) in order to have the tow proceed around the bend in the usual and customary manner, which procedure was followed;' that the Hope 'continued to proceed ahead at a good rate of speed, maintaining a position in approximately the center of the channel and failed to either slow down or stop, or proceed to her starboard in order to afford the tug Patience and her tow and helper tugs an opportunity to round the bend and straighten up with the channel.'
Faults are attributed to the Hope and the Spartan which are consistent with the foregoing quotations.
These pleadings have been referred to because they are characteristic of those in other causes.
At the trial it was stipulated that this libellant is entitled to a decree for the damages complained of, depending on the resolution of the controversies between the offending vessels.
No. 19,332: The owner of the Spartan sues the Magnetic and Patience. The faults alleged as to the former are that she failed to properly navigate and did nothing to keep the tail of the tow in line and permitted it 'to swing to her port side of the channel into the course of the down bound flotilla' and 'in that she failed to drop away from her tow and avoid collision.'
As to the Patience, that she permitted the tail of the tow to swing to the port side of the channel and that 'she failed to observe the conditions of her tow and to issue orders to the tug Magnetic and the other helper tug; * * * she failed to see that the Magnetic was properly manned;' and 'in that she failed to see that the Magnetic performed her duties in holding off the tail of the tow from swinging over to the wrong side of the channel and into the pathway of approaching flotillas' (by which is meant the Hope and her tugs).
The Patience was claimed by the Reading Co., and the Magnetic by Tice Towing Co., respectively, as owners, and the faults as alleged in the first cause are relied upon in their answers.
No. 19,629: The owner of the Spartan sues the owner of the Hope and alleges the following faults on the part of the latter: Failed to carry out a safe passage and to avoid collision; and in exposing the Spartan to the danger of resulting collision. Also, 'in failing to give orders to the Spartan' and 'in failing to stop and back when it (the Hope) saw collision was imminent' and 'in not having the steamer under proper control.' (it will be remembered that it was the captain of the Spartan who was navigating the Hope.)
The answer alleges the faults of the Magnetic and Patience heretofore indicated, and as to the tug Spartan 'in that she failed to arrange for and carry out a safe passage with the Tug Patience and its tow' and 'failed to take suitable and timely action to prevent colliding with the Tug Magnetic.'
No 19,684: The owner of the Magnetic sues the Spartan and the Hope, alleging the faults heretofore briefly alluded to, and in that cause her claim for damage of $ 750 was amended, on consent, ...