The opinion of the court was delivered by: GALSTON
This action is brought to recover damages to a steel tank barge, The Petroleum No. 7, and also to recover damages for loss of some of the cargo of fuel oil. The barge was in tow of the tug Matton No. 10, and was proceeding west in the barge canal between Locks 12 and 13. The Carutica, a grain-carrying vessel made up of three section which were navigated as a unit, was proceeding east. A collision resulted in the damage complained of by the libellants.
It was agreed by the respondents that the libellants sustained damages to both the barge and cargo, and that they were entitled to a decree. There remains, therefore, for decision the question of which one of the respondents was liable, or whether both were.
On October 4, 1947, at about 9:00 P.M. a collision occurred between the port bow corner of the barge Petroleum No. 7 and the port after side of the first section of the Carutica unit, and then with the port bow corner of the second section of that unit, in the Mohawk River of the New York State Barge Canal, about one mile west of Lock 12.
At the place of collision the channel was marked with red lighted buoys on the port hand for west bound vessels. The channel width between the buoys is about 300 feet. The distance from bank to bank is about 375 feet. The tug Matton was pushing in the usual fashion the oil barge Petroleum No. 7. The tug was made up to the barge with the stem of the tug against the middle of the stern of the barge, and with cables extending from the corners of the barge to the side of the tug, so as to make a stiff tow.
The Matton and her barge were of a total length of 277.8 feet. The beam of the tug was about 20 feet and the barge 40.5 feet.
The Carutica was 296.9 feet in length and 43 1/2 feet in beam.
It appears that some time shortly after 9 P.M. the master on the Matton observed the lights of a flotilla approaching from the opposite direction just at a time when he was about to blow a bend signal. At that time he heard a bend signal from the approaching flotilla. The Matton blew a one-whistle passing signal, which was immediately answered by a similar signal. Thus a port to port passage was agreed upon.
After the exchange of these passing signals the captain of The Matton observed The Carutica as she was coming around the bend, apparently not breaking around the bend but cutting the bend short. The Matton had slowed down, her wheel put to starboard to get towards the bank. As The Matton passed Red Buoy No. 258, The Matton was from 20 to 25 feet to the starboard of that buoy, which in itself was about 50 feet off the shore-line. It should be noted that at the time The Matton observed The Matton observed The Carutica The Matton's rudder was hard starboard, and the testimony is that she was at half speed in order to maintain the starboard bend safely. Her wheel was kept in that position to the time of collision.
Apparently The Carutica unit did not hold to its own starboard side, and the contention of those on The Matton is that The Carutica was on the wrong side of the channel.
Contrariwise The Carutica claims that at the time the vessels sighted each other The Carutica was making a speed of about 2 miles an hour. (At this time The Matton and her tow were making about 1 1/2 miles an hour.) It is the contention of The Carutica that when the vessels exchanged passing signals, both The Matton and The Carutica were proceeding in about the center of the buoyed channel. The Carutica claims after the exchange of one = whistle signals she altered her course to starboard in an effort to haul over from midchannel to her own starboard side of the channel. The altered course of The Carutica was not sufficient to avoid a collision. The collision occurred between the port bow corner of the barge Petroleum No. 7, first with the port after side of the first section of The Carutica, and afterwards hitting that side with the port bow corner of the second cargo section of The Carutica.
What fault or faults led to this collision is the critical question in the action. At the time of collision it is conceded that both The Matton and The Carutica carried all required running and other lights. The weather was not a factor, because it was a clear, dark night, with no appreciable wind, and the easterly current of the river about 1/8 of a mile per hour. The place of collision is an important factor in this case, to be considered in determining fault. Roberts, the master of The Matton, testified that at the time of collision the starboard side of The Petroleum No. 7 was about 70 feet from its own starboard bank, and that the had passed off Buoy No. 258, which itself was about 50 feet from the shore, at a distance of from 20 to 25 feet. Roberts said that the collision occurred about 400 or 500 feet beyond Buoy No. 258 on his starboard edge of the channel. After the collision, a line 120 feet in length was doubled, and ran to a tree on the starboard bank to hold the flotillas in position, and made fast about midship on The Petroleum No. 7 on its starboard side.
Robert's testimony as to the place of collision was in a measure corroborated by Nelson, the master of The Petroleum No. 7. Nelson said the collision occurred about 70 feet from the starboard bank of The Petroleum No. 7, at a distance of about 20 feet from Buoy No. 258. Gibbs, an engineer of The Matton, who came out of the galley immediately after the impact, with a rough estimate placed the shore-line from 50 to 60 feet off on the starboard side. Powers, the cook of The Matton, estimated that distance also at from 40 to 60 feet.
Wimette, the captain of The Carutica, said that the bow of The Petroleum No. 7 was about 30 to 40 feet from the Red Buoy Co. 260. On cross-examination, he said that it was the middle bow of The Petroleum No. 7 which was at that distance from the buoy. The barge was about 40 feet in width, so that the starboard bow corner of The Petroleum No. 7 would figure to be at from 10 to 20 feet from Red Buoy No. 260.
It seems reasonably clear that The Carutica was a a point about 10 to 20 feet from the channel edge on The Matton's side of the river. The apparent fault then of The Carutica was in failing to ...